House reaffirms FISA as “exclusive means by which electronic surveillance may be conducted”

The House has passed a bill that requires judicial review of electronic …

On Friday, the House passed a bill that could rein in some of the electronic surveillance practices that have become common since September 11.

After the last Congress appeared uninterested in investigating the widely-rumored collaboration between major US phone companies and the NSA (later confirmed by Attorney General Gonzales), it looked as though the legislative branch was content to sit out of the oversight process on this particular issue.

But there's a new sheriff in town now; under Democratic leadership, Congress is primed to get more involved in the broader battle over the legality of some phases of the "war of terror." Case in point: HR 2082, the authorization to fund another year of intelligence activities. The funding request passed, but so did an amendment that upholds the 1978 Foreign Intelligence Surveillance Act (FISA) as the only means by which to do electronic surveillance—and that requires continuous judicial oversight of requests.

The only exceptions to the FISA provisions will be by "specific statutory authorization," meaning that Congress will be the ones to spell out all exceptions and "creative interpretations." Reps. Adam Schiff (D-CA) and Jeff Flake (R-AZ) co-sponsored the amendment that inserted this provision into the bill, with Schiff saying in a statement that "electronic surveillance of those seeking to harm our country must be targeted and aggressive. It must also be constitutional and respect the privacy of law-abiding Americans. When Congress said the Administration must get court approval for domestic surveillance, we meant it. Today, Congress reaffirmed that basic protection."

Should a similar provision pass the Senate, the bill could shut down the kind of warrantless surveillance that resulted in the recent lawsuits against AT&T, Verizon, and others for allowing government computers access to network backbones by using optical splitters, secret rooms, and powerful hardware. The NSA used this setup ostensibly to intercept phone calls from Al-Qaeda members abroad, even if one end of the call ended inside the US (the NSA is generally prohibited from domestic spying, so the program has been controversial).

In return for this cooperation, the Bush administration has worked furiously on behalf of the phone companies, arguing that cases against them in federal court should be thrown out because they might reveal state secrets. The administration has also tried to insert language into the Senate intelligence funding bill (the companion to the House version) that would grant the companies retroactive immunity from prosecution. The Senate will consider that bill in the near future.

The House bill also includes a section that requires the President to submit a report to Congress describing any attempts to use the intelligence services to help overthrow a democratically elected government in the last 10 years. Congress may want more details on possible US involvement in a botched Venezuelan coup several years back.

Finally, the House bill requires the Director of National Intelligence to submit a report to Congress on how climate change could impact national security.